November 17, 2000
DO-00-044
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Amy L. Comstock
Director
SUBJECT: Recent Office of Legal Counsel Opinions Concerning
18 U.S.C. § 207
The Office of Legal Counsel (OLC) recently issued two opinions
concerning 18 U.S.C. § 207. One addresses the question of when a
person is no longer a candidate for purposes of the exemption at
section 207(j)(7) for representations made by former senior and
very senior executive branch employees solely on behalf of a
candidate. The other addresses who is covered by the one-year
restriction on certain communications or appearances by very senior
employees back to the Government, at 18 U.S.C. § 207(d).
I. Opinion Concerning the Scope of the Exemption at
18 U.S.C. § 207(j)(7)
Section 207(j)(7) exempts certain individuals who communicate
or appear solely on behalf of a candidate or certain political
organizations from the restrictions on former senior and very
senior employees imposed by 18 U.S.C. §§ 207(c) and 207(d). A
candidate is a person who seeks (or who has authorized others to
explore on his or her behalf) election to Federal or State office.
Section 207(j)(7) does not explain when a candidate for the Office
of President or Vice President ceases to be a candidate. In order
to permit an orderly and effective transition, the Office of
Government Ethics (OGE) asked OLC, on October 6, 2000, whether,
under section 207(j)(7), a President-elect and Vice President-elect
are deemed "candidates" up until the point of inauguration.
OLC, in an opinion issued November 6, 2000, concluded that a
candidate for the Office of President of the United States is
seeking office as a candidate until he or she actually assumes that
office. Accordingly, notwithstanding the post-employment
restrictions at 18 U.S.C. §§ 207(c) and (d), a person who otherwise
meets the conditions of the exemption at section 207(j)(7) may
communicate on behalf of a person who is a "candidate" until that
person assumes the office to which he or she was elected.
II. Opinion Addressing the Scope of 18 U.S.C. § 207(d)
Among the persons subject to the restriction at
18 U.S.C. § 207(d) are those "employed in a position . . . at a
rate of pay payable for level I of the Executive Schedule . . . ."
See section 207(d)(1)(B). Positions at level I of the Executive
Schedule are listed in 5 U.S.C. § 5312 and include members of the
cabinet, the Director of the Office of Management and Budget, and
the Commissioner of Social Security. OLC was asked whether
section 207(d) applies to other persons who are paid, pursuant to
various pay authorities, amounts in excess of the amount paid
persons at level I of the Executive Schedule.
In an opinion issued November 3, 2000, OLC concluded that
section 207(d) applies only to employees whose pay is exactly the
same as that set for level I positions. OLC, as a basis for its
conclusion, cited the express language of section 207(d) [1]. Persons
paid above that level would be covered by the one-year bar of
18 U.S.C. § 207(c) for senior employees rather than the more
restrictive one-year bar at section 207(d) for very senior
employees. If an employee's salary is set administratively at the
level I rate, OLC concluded that the decision to so set the
employee's pay would presumably reflect an agency determination
that the more stringent restrictions of section 207(d) should
apply.
Copies of the two OLC opinions may be obtained from OGE's
Website at www.usoge.gov.
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1. The exemption does not apply if the person making the
communication is employed by anyone other than a candidate, one of
the specified political organizations, or a person or entity who
represents or advises only such candidates or political
organizations; nor does the statute apply to former employees of
the Federal Election Commission with respect to communications to
or appearances before the Federal Election Commission.